If There Is An Immovable Property Belonging To The Deceased, The Land Registry And The Underlying Documents Should Be Brought And It Should Be Determined Who The Heirs Of The Deceased Actually Are
T.C. JUDICIARY
14th Civil Chamber
Main: 2015/12867
Decision: 2016/2952
Date of Decision: 08.03.2016
LAWSUIT FOR ANNULMENT OF THE CERTIFICATE OF HEIRSHIP – IF THERE IS REAL ESTATE BELONGING TO THE DECEASED, THE TITLE DEED AND THE UNDERLYING DOCUMENTS SHOULD BE BROUGHT AND IT SHOULD BE DETERMINED WHO THE HEIRS OF THE DECEASED ACTUALLY ARE – REVERSAL OF THE JUDGMENT
SUMMARY: It was not deemed correct to decide to dismiss the lawsuit, while the land registry and the underlying documents, if any, of the immovable property belonging to the deceased should be brought, all evidence should be asked from the parties, and it should be determined without hesitation whether there is a genealogical relationship between the plaintiffs and the deceased, who the heirs of the deceased actually are, and a decision should be made according to the result, and for this reason, the judgment should be reversed. The judgment is hereby reversed.
(4721 S. K. art. 30)
Case and Decision: At the end of the hearing held upon the request for the cancellation of the certificate of inheritance by the plaintiffs’ attorney against the defendant with the petition dated 14.12.2010; the judgment dated 10.07.2013 on the dismissal of the lawsuit was requested to be examined by the plaintiffs’ attorney, and after the acceptance of the petition of appeal, which was understood to be in due time, the file and all the papers in it were examined and considered accordingly:
The lawsuit is related to the request to cancel the certificate of inheritance and to issue a new certificate of inheritance.
Plaintiffs’ attorney…. …. which was obtained by the defendant based on the certificate of inheritance numbered 1963/373 Main, 250 Decision of the Civil Court of First Instance based on the certificate of inheritance numbered 1963/373 Main, 250 Decision of the Civil Court of First Instance No. 1963/373, 250 Decision of the Civil Court of Peace No. 1963/373 Main, 250 Decision of the Civil Court of First Instance No. 1963/373.
The defendant defended the rejection of the lawsuit.
Court decided to dismiss the lawsuit on the grounds that in the response letter of the General Directorate of Population and Citizenship Affairs dated 30.05.2013, it was determined that….., born in 1259, and his daughter …, born in 1308, were registered in the household, but the records of ….’s mother … and …, who was reported to be his brother, were not found, no connection could be established with … and no record of Yaşar was found.
The judgment was appealed by the counsel for the plaintiffs.
In order to reach a healthy conclusion in a case, it is necessary to ask and determine the evidence from the parties, to collect all the evidence that will be shown and affect the outcome of the case, to bring the necessary documents from the relevant places, and then to evaluate all the collected evidence together and make a judgment according to the result.
In addition, since the lawsuits filed with the request for the issuance of a certificate of inheritance are subject to uncontested jurisdiction, it is undoubted that the principle of ex officio investigation will be applied in such cases, and in such lawsuits filed by the heirs, the plaintiff only has to prove that he is the heir, in other words, he has to prove the genealogy between himself and the heir, and whether there are other heirs and their inheritance shares will be determined by the court ex officio.
On the other hand, Article 30 of the Turkish Civil Code No. 4721 stipulates that birth and death can be proved primarily by the records in the civil registry, and if there is no record in the civil registry or if it is understood that the record in the civil registry is not correct, the real situation can be proved by any evidence.
In the concrete case; it is undoubted that all means should be used to determine the population records and addresses of the deceased and his heirs and to obtain this information. However, the court did not ask the land registry office for the land registry records and the underlying documents, the contract table of the land registry where the deceased was the owner, and did not inquire about the deceased’s population registration information and address.
If there is an immovable property belonging to the deceased, the title deed record and the underlying documents should have been brought, all evidence from the parties should have been asked, and it should have been determined without any doubt whether there is a genealogical relationship between the plaintiffs and the deceased, who the heirs of the deceased actually are, and a decision should have been made according to the result, but it was not deemed correct to decide to dismiss the lawsuit, and for this reason, the judgment should be reversed.
Conclusion For the reason explained above, it was unanimously decided on 08.03.2016 that the appeal objections of the plaintiffs’ attorneys are accepted and the judgment is reversed, and the prepaid fee shall be returned to the depositor upon request.
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